Opinion

Donovan Edward Ruby v. Secretary of the United States Navy

  • 365 F.2d 385
  • 10 Fed. R. Serv. 2d 1541
  • 1966 U.S. App. LEXIS 5954
Court
Court of Appeals for the Ninth Circuit
Filed
Jun 2, 1966
Status
Published
Author
Chambers
On the bench
Chambers, Barnes, Hamley, Jertberg, Merrill, Koelsch, Browning, Duniway, Ely
Cited by
199 cases
Authority
More cited than 24.8%

stating “[w]here the 27 deficiency in a notice of appeal, by reason of . . . reference to a non-appealable order, is 28 1 clear to the district court, it may disregard the purported notice of appeal and proceed with 2 ||the case, knowing that it has not been deprived of jurisdiction.”

How later courts described this case

  • stating “[w]here the 27 deficiency in a notice of appeal, by reason of . . . reference to a non-appealable order, is 28 1 clear to the district court, it may disregard the purported notice of appeal and proceed with 2 ||the case, knowing that it has not been deprived of jurisdiction.”
  • noting that 11 “Where the deficiency in a notice of appeal, by reason of untimeliness, lack of essential 12 recitals, or reference to a non-appealable order, is clear to the district court, it may disregard 13 the purported notice of appeal and proceed with the case, knowing that it has not been 14 deprived of jurisdiction.”
  • holding that notice of appeal from unappealable order does not divest district court of jurisdiction
  • ‘Where the deficiency in a notice of appeal, by reason of untimeliness, lack of essential recitals, or reference to a non-appealable order, is clear to the district court, it may disregard the purported notice of appeal and proceed with the case, knowing that it has not been deprived of jurisdiction.”

Written by the judges who cited it.

The opinion

CHAMBERS, Circuit Judge,

concurring.

I concur in the foregoing. Fundamentally I do not believe in it or in our Firchau case, 345 F.2d 269 , in which I concurred. But to me there is a message by which I must abide in United States v. State of Arizona et al., 346 U.S. 907 , 74 S.Ct. 239 , 98 L.Ed 405, and Hoiness v. United States, 335 U.S. 297 , 69 S.Ct. 70 , 93 L.Ed. 16 , that reaches in to Firchau and Ruby.

I do wonder how we shall hold when a plaintiff files his notice of appeal as an appendage to his original complaint.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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